Randall Kallinen and Paul Kubosh v. the City of Houston

462 S.W.3d 25, 58 Tex. Sup. Ct. J. 576, 2015 Tex. LEXIS 283, 2015 WL 1275385
CourtTexas Supreme Court
DecidedMarch 20, 2015
DocketNO. 14-0015
StatusPublished
Cited by27 cases

This text of 462 S.W.3d 25 (Randall Kallinen and Paul Kubosh v. the City of Houston) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Randall Kallinen and Paul Kubosh v. the City of Houston, 462 S.W.3d 25, 58 Tex. Sup. Ct. J. 576, 2015 Tex. LEXIS 283, 2015 WL 1275385 (Tex. 2015).

Opinion

PER CURIAM

The Texas Public Information Act (“PIA”), Chapter 552 of the Texas Government Code, “guarantees access to public information, subject to certain exceptions.” Tex. Dep’t Pub. Safety v. Cox Tex. Newspapers, L.P., 343 S.W.3d 112, 114 (Tex.2011). The PIA provides that when a governmental body receives a written request for information for which it wishes to claim an exception, it must timely seek a ruling from the Attorney General if the *27 exception’s applicability to the requested information has not previously been determined. Tex. Gov’t Code § 552.301(a); see also id. § 552.301(g). But the PIA also provides that a requestor'may sue to compel disclosure of the information. Tex. Gov’t Code § 552.321(a). In this case, the court of appeals held that a trial court lacks subject matter jurisdiction over such a suit until the Attorney General rules. 414 S.W.3d 815, 820 (Tex.App.-Houston [1st Dist.] 2013). We disagree.

Invoking the PIA, Randall Kallinen requested information from the City of Houston regarding a study of traffic light cameras it had commissioned. The City produced a large number of documents but withheld some and timely asked the Attorney General for an opinion on whether the PIA excepted the withheld information from disclosure. The PIA gives the Attof-ney General forty-five business days to issue opinions, though the time can beex-tended. Tex. Gov’t Code § 552.306(a). But before this time elapsed and before the Attorney General ruled, Kallinen sued for a writ of mandamus to compel the City to disclose the withheld information. The City moved to abate the lawsuit pending the Attorney General’s ruling, but the Attorney General closed his file when he was alerted to the suit. At the time, the Attorney General did not interpret the PIA to require an open records ruling on issues already in litigation. See Tex. Att’y Gen. OR2011-687 (citing Tex. Att’y Gen. OR1990-560 at 3 (declining to rule on sensitive information on the ground the issues should be resolved in the pending Texas prison litigation), and A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 671 (Tex.1995) (noting in dicta that the Attorney General withdrew his opinion pending litigation on PIA questions)).

The City filed a plea to the jurisdiction, arguing that the court lacked jurisdiction over the suit until the Attorney General ruled. The district court overruled the plea, granted summary judgment for Kalli-nen, ordered disclosure of many of the withheld documents, and awarded Kallinen $175,664 in attorney fees through appeal to this Court.

The City complied, with the order to disclose but appealed the attorney fee award. The parties agree that the only basis for the trial court’s jurisdiction is Section 552.321(a) of the PIA. That provision, with subsections inserted in brackets for ease of reference, conditions the court’s exercise of jurisdiction as follows:

A requestor or the attorney general may file suit for a writ of mandamus compelling a governmental body to make information available for public inspection if the governmental body [A] refuses to request an attorney general’s decision ... or [B] refuses to supply [1] public information or [2] information that the attorney general has determined is public information that is not excepted from disclosure.

Tex. Gov’t Code § 552.321(a). The parties agree that conditions A and B2 do riot apply. The court of appeals reasoned that condition B1 cannot apply when the governmental body is challenging whether an exception to disclosure applies because the information has not yet been determined to be public. 414 S.W.3d at 818. Accepting the City’s argument, the court stated that the Attorney General must determine whether information is subject to disclosure when asked to do so, that he has exclusive jurisdiction to make that determination in the first instance, that the requestor of information must exhaust all administrative remedies before suing, and that therefore a trial court’s jurisdiction over a requestor’s suit “only arises after the Attorney General has ruled..” Id. at 818-20.

*28 The City’s position is flawed in several respects. First, it equates information that is public with information that has been determined by the Attorney General to be public, so that condition B2 swallows up condition Bl. This violates a duty of statutory interpretation to “give effect to all the words of a statute and not treat any statutory language as surplusage if possible.” Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex.1987).

Further, the City’s view of Section 552.321(a) would relegate mandamus relief to compelling a governmental body to request an Attorney General’s decision and then comply with it. The correctness of that decision would be unreviewable. But we have reviewed the Attorney General’s rulings. See Cox Tex. Newspapers, L.P., 343 S.W.3d at 113; In re City of Georgetown, 53 S.W.3d 328, 329-36 (Tex.2001). And we have interpreted PIA exceptions without a ruling by the Attorney General. See City of Garland v. Dall. Morning News, 22 S.W.3d 351, 358-64 (Tex.2000); A & T Consultants, Inc., 904 S.W.2d at 671, 674-81. The court of appeals’ interpretation ignores these cases.

The City argues, and the court of appeals held, that requestors of information should be required to exhaust their remedies in placing disputes before the Attorney General before resorting to the courts. But requestors have no such remedies. While the Attorney General may invite their arguments, they have no right to request or demand a ruling or disclosure from the Attorney General, and no right to an administrative appeal. See Tex. Gov’t Code § 552.304. Requestors cannot be required to finish something they have no right to start. The requirement that a governmental body seek a ruling from the Attorney General when withholding requested information is a check on the governmental body, not a remedy for the re-questor to exhaust. And again, the City’s view of Section 552.321(a) would make the Attorney General’s ruling unreviewable.

The City argues that because information is generally “presumed to be subject to required public disclosure” when a governmental body fails to timely request an Attorney General’s ruling, Tex. Gov’t Code § 552.302, the information should not be considered public when a ruling is requested. But the premise cannot establish its converse. One may infer from a governmental body’s failure to request a ruling that the body is not claiming an exclusion, else it would advance its position in compliance with prescribed procedures. See Tex. Gov’t Code § 552.301.

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Bluebook (online)
462 S.W.3d 25, 58 Tex. Sup. Ct. J. 576, 2015 Tex. LEXIS 283, 2015 WL 1275385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/randall-kallinen-and-paul-kubosh-v-the-city-of-houston-tex-2015.